The Ritchie ratchet, part 4

Thanks to the Minnesota Supreme Court, Minnesota voters will be allowed to vote on two proposed Minnesota constitutional amendments when they go to the polls in November. Despite the best efforts of the League of Women Voters and Democratic officials, proposed amendments protecting traditional marriage and requiring photo identification for voting will be on the ballot as the Legislature directed.

Minnesota Secretary of State Mark Ritchie — forgive me for repeating myself, but it helps to recall that he is the Man from SOROS — sought to undermine the proposed amendments’ chances of passage by toying with the ballot titles prescribed by the legislature. The League of Women Voters, Common Cause and Jewish Community Action pursued an even more effective route to defeating the proposed photo identification amendment; they sought to keep it off the ballot entirely.

Ritchie spoke at the state Democratic convention this past summer opposing the photo identification amendment — in his personal capacity, of course. (The video of his speech is posted here.) It’s good that he made clear he was speaking in his personal capacity. Otherwise we might have been tempted to think that he was engaged in partisan political dirty work when he exercised his putative powers to rewrite the ballot titles that the Legislature had directed.

Last week the Minnesota Supreme Court ruled that, in rewriting the ballot titles specified by the Legislature, Ritchie overstepped his bounds. The Court’s opinion in the two consolidated cases on the ballot titles is posted here (hereinafter Limmer), with a related opinion in the League of Women Voters case posted here. These opinions merit reading if you have any interest in these issues.

Hans Von Spakovsky usefully summarized the League of Women Voters decision, rejecting the contention that the proposed photo identification amendment should be kept off the ballot:

The League of Women Voters had tried to convince the court that the people of Minnesota should not be allowed to decide this issue for themselves.

The court held that the petitioners were “not entitled to this unprecedented relief.” The League argued that the ballot question was “so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the law to a popular vote.” But the court rejected the claim that the difference between “valid government-issued photographic identification” and “valid photographic identification” was “unreasonable and misleading.”

The court also rejected the League’s contention that the ballot question was misleading because it says that “all voters” would be required to present ID when the amendment requires only those voting in person to do so. The court noted, however, that the referendum says absentee voters will be subject to “substantially equivalent identity and eligibility” requirements.

The Limmer case raised a slightly different issue. It raised the question whether the Secretary of State had the power to rewrite the ballot title of a proposed amendment when the Legislature had specified one. Article IX of the Minnesota Constitution vests the Legislature with the power to submit proposed constitutional amendments to the people. A statute directs the Secretary of State to provide “an appropriate title.” When the Legislature exercises its constitutional amendment authority to its maximum extent, as it did in the case of the two proposed constitutional amendments, it leaves no room for tinkering by the executive or judicial branches. So the Court held, I believe correctly.

Both opinions were decided 4-2, with Justices Alan Page and Paul Anderson filing over-the-top dissents. Justice Page (in the League of Women Voters case) accuses the Legislature of having engaged in “a classic bait and switch” because the ballot language (at worst) slightly simplifies the practical requirements of the proposed amendment. In a 66-page dissent, Justice Paul Anderson argues that the entire text of the proposed amendment should be placed on the ballot, rather than the ballot title directed by the Legislature. The hand-wringing and histrionics of Anderson’s dissent put me in mind of T.S. Eliot’s criticism of Hamlet: the emotions expressed lack an objective correlative. Get a grip, man.

It should be noted that the Supreme Court unanimously rejected the League of Women Voters’ petition to keep the proposed photo identification amendment off the ballot. The court’s decision on that score, despite the dissents, was 6-0. The court was divided only on the question of what to do about how the Legislature handled it.

Here is the language of the photo identification amendment that the Legislature directed be placed on the ballot: “Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?” Here is the actual amendment language that would be adopted by a “yes” vote:

All voters voting in person must present valid government-issued photographic identification before receiving a ballot. The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section. A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot. A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.

All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted.

The difference between the former and the latter induces something like a nervous breakdown on the part of Paul Anderson. He also thinks, along with Justice Page, that the reference in the ballot question to valid photographic identification rather than government-issued photographic identification renders the ballot question illegitimate. Sorry, but these judges are out to lunch. I think the full text of the amendment is entirely consistent with the title and might well amplify the vote supporting its passage among those concerned that some potential voters would unfairly be disenfranchised by the requirement of photo identification. Requiring the Legislature to submit the full text, however, is lacking in authority or precedent.

The Minneapolis Star Tribune published an utterly predictable editorial commenting on the Minnesota Supreme Court decisions last week. Its predicability isn’t its worst element. To the extent it makes an argument, this is it: “The court’s majority missed an opportunity to give voters more information on the amendments, saying it had a ‘limited role’ in such cases. The real losers in all of this are Minnesota’s voters, who are left to deal with the results of the state’s flawed amendment process.” The real losers, as always, are Star Tribune readers who take the flapdoodle at face value and miss any chance to understand the issues. Its political reporters have certainly done another fine job to obscure the issues.

Here’s the deal. The Minnesota Supreme Court majority — Chief Justice Lorie Gildea and Associate Justices Barry Anderson, Christopher Dietzen and David Stras — was doing its duty to apply the law as it understood it, not enforcing its policy preferences. This is a distinction that is apparently beyond the ken of the editorialists at the Star Tribune.

Living in the Twin Cities, I have seen a grand total of one lawn sign supporting either of the two amendments. It will be interesting to compare the consensus of the visible evidence in the Twin Cities with the results when the voters have their say on November 6. Stay tuned for part 5 in this continuing series.